See Rock City

Saturday, February 1, 2014

One Drop Rule

aka: Act 320 of 1911

aka: House Bill 79 of 1911

In 1911, Arkansas passed Act 320 (House Bill 79), also known as the “one-drop rule.” This law had two goals: it made interracial “cohabitation”
a felony, and it defined as “Negro” anyone “who has...any negro blood
whatever,” thus relegating to second-class citizenship anyone accused of
having any African ancestry. Although the law had features unique to
Arkansas, it largely reflected nationwide trends.

Laws
against interracial sex were not new. Virginia declared extramarital
sex a crime during Oliver Cromwell’s era and increased the penalty for
sex across the color line in 1662. In 1691, Virginia criminalized
matrimony when celebrated by an interracial couple. Maryland did so the
following year, and others followed. By 1776, twelve of the thirteen
colonies that declared independence forbade intermarriage.

Though the intermarriage ban widened, extramarital interracial sex—at least between white men and black
women—was tolerated. By 1910, twenty-nine of the forty-six states,
including Arkansas, prosecuted intermarriage but not such instances of
interracial sex. Public rhetoric justified such laws as preserving
“racial purity.” Nevertheless, tolerance of white male/black female
liaisons versus punishment of black male/white female relationships
showed this to be a rationalization. Scholars suggest that marriage was
punished because it implied social equality—an alliance between families
that was not tolerated across the color line. Mere sex lacked such
implication.

Until Reconstruction, states found ways to accommodate interracial families. However, tolerance faded during the Jim Crow
era. House Bill 79 outlawed interracial families altogether, declaring
the mere existence of a biracial child evidence of parental crime.

The
law also defined “Negro” as having “any negro blood whatever.”
Dichotomous “racial” classification was also invented in colonial times,
with blood-fraction laws defining a “Negro” as having more than a given
fraction of African ancestry. North America’s first blood-fraction law,
in 1705, used a one-eighth rule (a person was black if one
great-grandparent was entirely of African ancestry). By 1910, twenty
states classified citizens by blood-fraction, most using one-fourth or
one-eighth. However, appearance also played a role in racial definition
in pre-1911 Arkansas, as exemplified by the case of the 1861 freedom
case of Daniel v. Guy, in which slave Abby Guy was awarded her
freedom largely because of her appearance and behavior. Before 1911,
Arkansas’s railroad segregation law defined “Negro” as “one in whom there is a visible and distinct admixture
of African blood.” However, the emergence of scientific racism gave
rise to the notion that a person could look and self-identify as white
but still somehow be black.

A neighboring state outlawed
interracial sex three years earlier. Louisiana’s Act 87 of 1908 declared
“concubinage between a person of the Caucasian or white race and a
person of the negro or black race” a felony. The law was tested in 1910
when the Louisiana Supreme Court overturned the conviction of Octave
Treadaway of New Orleans and his mistress. Chief Justice Provosty ruled
that the woman was neither “Negro” nor “Black”; rather, she was
“Coloured,” an intermediate caste based upon dual ancestry, as defined
in Louisiana caselaw. Within a month of Provosty’s ruling, lawmakers
reconvened, amending the statute to define “Negro” via a
one-thirty-second blood fraction—in effect, a one-drop rule.

When
Arkansas’s legislature met the following year, it left no wiggle-room
for a recalcitrant judge. They adopted the wording of Louisiana’s
statute while adding the one-drop clause. The felony for interracial sex
was “punishable by one month to one year in penitentiary at hard
labor.”

House Bill 79 was introduced in the Arkansas General Assembly on January 16, 1911, by Representative Napoleon B. Kersh of Lincoln County. According to the next day’s Arkansas Gazette,
an amendment was offered that would limit the bill’s provisions only to
Lincoln County, but the amendment was defeated. The bill was read in
the state Senate on February 3 and was referred to committee, where it
waited until the special session called by Governor George Washington Donaghey to deal with other unfinished legislative business. The bill was quietly approved on May 30, with little notice or fanfare.

Oddly, the first case appealed to the Arkansas Supreme Court
based on the 1911 statute was a dispute over school segregation, not
sex. In 1921, three great-grandchildren of Maria Gocio, who were by all
physical appearances white, were expelled from Public School 16 in
Montgomery County because Maria admitted to a trace of Cherokee
ancestry. The school felt that Cherokee had “Negro” blood. The
children’s parents sought a mandamus order based on the
railroad-segregation law (“visible and distinct admixture”). They lost
in State v. School District (1922) when Arkansas Supreme Court
Justice T. H. Humphreys ruled that the 1911 law applied (“any trace of
negro blood”). The children and their future descendants were ruled to
be black because of a great-grandmother’s Cherokee ancestry.

The
language of Act 320 continued to be published in the statutes of
Arkansas through the 1960's, although repeal of various laws demanding
separation of whites and blacks (and a general failure to enforce laws
forbidding extramarital sexual relations) made its provisions obsolete.
Act 320 essentially disappeared from the books with the passage of Act
280 of 1975, which rewrote the criminal code of Arkansas’s statutes, no
longer addressing extramarital sex and no longer defining race in terms
of ancestry.